Theme: The House of Lords.

INTRODUCTION
Britain is a vigorous, creative and dynamic country. Its people are inventive, talented and diligent. They deserve a framework for their country which reflects the unique character of the place and the people. Parliament is where the will of Britain's people is expressed: where the temper, direction and course of our country is set. Parliament is the core of political accountability in Britain, where the decision of the electorate to support a published programme of policies is transformed into legislation, into consideration of the opportunities and difficulties facing the nation, and into leadership in government. But for Parliament to carry out these functions, it must rest on the assent of the people of Britain. To sustain that, it must carry out its work with authority, and with integrity. In recent years, both the authority and integrity of Parliament have been questioned, and its representativeness subject to ever-closer scrutiny. Parliament itself has taken steps to respond to this challenge to its role and performance, by improving its standards and examining its practices. The Government believes that Britain, like other large mature democracies, needs a two-chamber legislature. While other major democracies show a wide range of variation in how they form their second chambers, a second chamber is a feature of almost all of them. But the second chamber must have a distinctive role and must neither usurp, nor threaten, the supremacy of the first chamber. Ensuring that the principal democratic mechanism of Britain the House of Commons works in the best possible way is important. The ability of the elected Government to fulfil its electoral contract with the British people and deliver what they have asked it to do primarily depends on the proper performance of the House of Commons, but it rests too on an effective and balanced second chamber the House of Lords. While the House of Commons clearly reflects the wishes of the people, and so is the source of both legitimacy and power of the elected Government, the House of Lords has an important role as a significant element in the legislative process. The House of Lords cannot be immune from change. The House of Lords needs to adapt and modernise. The House of Lords has a number of functions within Parliament considering and amending legislation, questioning the Government through debates and questions to Ministers, debating matters of public interest and carrying out specialist investigations through select committees of the House. These are all important jobs for a second chamber, and the increasing volume and complexity of Government work and Government legislation means that both the workload of the House of Lords is increasing and its contribution to the legislative process is greater. The most distinctive and important role of the present House of Lords is the specialist expertise and independent perspective it can bring to the scrutiny of legislation. But the House of Lords and the work it carries out suffer from its lack of legitimacy, because the presence of the hereditary peers creates a permanent, inbuilt majority for a single party. For its functions to be properly performed, the House of Lords needs a degree of legitimacy which it does not now enjoy. 4

This limits the extent to which it can make a proper contribution as a second Parliamentary chamber. Reforming the House of Lords is a key element of the Governments legislative plans, and proposals for further reform go beyond that. I am convinced that many of the key institutions of Britain are amongst the best in the world. They have developed many of them over centuries in ways which catch the character of Britain and the British people: a character rooted in fairness, in decency and in democracy. They have changed throughout their history: they will continue to change, now and in the future. All institutions need to modernise to maintain their impact, their importance and their integrity. Reform of the House of Lords is long overdue. For too long, hereditary peers with no democratic legitimacy, whose role is based on birth and not merit, have been able to play a part in passing laws affecting everyone in Britain. For too long, Britain has got by with a second Parliamentary chamber which is less good than it could be. For too long, governments in Britain have shirked the responsibility of reform. In my course paper I will look at the key functions of the House of Lords . Also, it will be discussed how the role of the Second Chamber has changed throughout history and to understand why the House of Lords has been reformed for several times, its necessary to know a bit about the historical development of the Lords.

CHAPTER I EVOLUTION OF THE HOUSE OF LORDS

The UK legislature is bicameral, that is, consisting of two chambers: the House of Commons and the House of Lords. Until 1999, the House of Lords was the largest legislative body in the world, comprising in theory - about 1200 members. Many of these members were holders of hereditary peerages - the result of honours conferred by kings on their ancestors. Then in 1999 the House of Lords Act swept away the power of most hereditary peers to vote. This was supposed to have been the first step in a larger program of reform, but the next steps proved harder to take than the Government expected. The House of Lords is the original chamber of Parliament, predating the Commons. Its origins can be traced back to Saxon times, when it was the custom of the king to call the leading men of the country to advise him at court. In the two centuries after the Norman conquest, the irregular meetings of the English kings and their barons and bishops - the aristocracy of the day - developed into a form of parliament that we would recognise. In the 11th century, the king was advised and supported primarily by the Curia Regis, or Kings Court, comprised of these aristocrats. We do not know in detail how this baronial assembly gave way to a more representative form of parliament, but it seems clear that by the middle of 5

the 12th century the shire courts - the early manifestation of regional democracy - were being asked to send representatives to the Kings Court . There were a number of reasons why kings would need to seek the consent and advice of regional representatives, not least of which was that they relied on the shires for raising finance. Another reason for the king to summon regional representatives to the Court was to balance the power marshaled by particular factions of the aristocracy. One of these factions, led by Simon de Montfort, Earl of Leicester, probably precipitated the first recognisable modern parliament. The so-called model parliament, was summoned by Edward I in 1265. It consisted of two knights from each shire, two burgesses from each borough, and two citizens from each city, in addition to the King and the aristocrats of the Court. This parliament was specifically called to settle constitutional disputes between the King and de Montfort, but the same form of parliament became the rule from the beginning of the 14th century. We can see here the origins of the Lords/Commons divide that makes up the modern Parliament. In the 11th and 12th centuries, barons were summoned to the Court sporadically, at the whim of the king. In the early 14th century, there developed the notion of peerage, that is, the right to sit in Parliament as a member of the Court. The first recognisable hereditary peerage was granted in a barony by patent to John Beauchamp in 1387; this barony carried a right to sit in Parliament; the right was to descend to male heirs. By the early 15th century, the majority of the aristocratic part of Parliament was hereditary. By the 15th century we have a recognisable bicameral Parliament. The Upper House consisting of hereditary peers, descended from people honoured by the king, and a Lower House, consisting of representatives of the community. 1 The next two hundred or so years of stable Parliamentary composition saw an increase in the power of Parliament against the king; these developments culminated, of course, in the civil wars of the 17th century. By the end of this period the notion of Parliamentary Sovereignty was firmly enshrined in the Bill of Rights, along with a constitutional limit to the power of the monarchy.The House of Lords was abolished for a short time under the administration of Cromwell, but was eventually restored along with the monarchy. Between the 18th and 19th centuries, the Commons became the dominant power in Parliament, largely because it controlled taxation. By controlling taxation it controlled finance, and by controlling finance it controlled government. During this period the party system of government developed, and it became reasonable to refer to the party in the Commons with the majority as the Government.

www.histparl.ac.uk

The Reform Act of 1832 led the Lords to accept that it would not, and indeed could not, stand against the Commons when it represented the unequivocal view of the populace. However, it could assert that the only way the will of the people could be determined was by a general election. 2

CHAPTER II WORK AND ROLE OF THE HOUSE OF LORDS

For many years there has been opposition to the continued existence of the House of Lords as the second chamber in our present bicameral parliamentary system. Nevertheless the fact remains that a second chamber is needed to assist in the legislative process and the House of Lords performs the functions of a second chamber extremely well. However, despite the success of the House of Lords in performing its functions it can be argued that the House is nevertheless restricted by its aristocratic and unrepresentative composition from exercising its powers effectively. In a democracy, it may be argued all legislators should be directly accountable to the people at elections or at least accountable indirectly, for example, by election by the House of Commons. Their Lordships, however, take their seats in the legislature either because they are hereditary peers or because they have been created life peers under the Life Peerages Act 1958. The former are criticised on the grounds that high office should be awarded to those who earn it on merit and not by accident of birth, and as most hereditary peers are Conservative this leads to a permanent Conservative majority in the House. The life peers are criticised because of the considerable powers of patronage left in the hands of the Prime Minister to reward party loyalists and retiring ministers with seats in the Upper Chamber. It is also thought by some that since the members of the House of Lords do not represent any body of constituents they speak for a small privileged section of the community. As Lord Birkenhead once memorably said in debate to a member who annoyed him: The noble Lord represents no-one but himself and I dont think much of his constituency.3

2.1. The Function and the Powers of the House of Lords

Longford, Frank Pakenham, 7th Earl of, A History of the House of Lords. New edition,Gloucestershire,Sutton

Publishing,1999.
3

Foreign & Commonwealth Office London,The UKs System of Government,House of Lords (page 8).

The major functions of the House lie in scrutinising, amending and approving law-making proposals which have been passed by the House of Commons. Bills may also start their legislative passage in the Lords, a useful device for relieving time in the hard-pressed Commons. The powers of the Lords are limited by the Parliament Acts 1911 and 1949. These Acts provide that in relation to money bills (those bills solely concerned with finance), the House of Lords must approve the bills within one month. In relation to other bills, which are the vast majority, the Lords may delay a bill for up to twelve months over two parliamentary sessions, suggesting and negotiating amendments to the bill. After this period, if the Lords has rejected a bill twice, or amended it in a manner unsatisfactory to the Commons (which amounts to the same thing), the government may employ the Parliament Acts to overcome House of Lords opposition and go straight for the Royal Assent, which is the final requirement for making a bill an Act of Parliament The actual and potential conflicts between the two Houses in the legislative process should not be overemphasized. While the Parliament Acts 1911 and 1949 set out rules under which the House of Commons may in the face of sustained opposition in the Lords present a bill for the Royal Assent without the Lords consent, the Acts are rarely used. The reason for this lies in the various constitutional conventions and practices which regulate relations between the two Houses, which together reduce the need to resort to the law. The House of Lords provides a useful forum for debating the great issues of the day. Less controlled by the party whip system than the Commons, there is greater individual freedom in the Lords than the Commons. This freedom is also enhanced by the fact that the Lords are unelected, whether hereditary or appointed, and do not continue to hold their seats at the mercy of government. Once appointed, the Members position is secure. In the Commons, the time on the floor of the House is largely controlled by the government of the day, and dominated by the governments need to get its legislative programme through Parliament within the annual session. In the Lords, however, time, while still restricted by legislative scrutiny, is less dictated by government need than by the Lords perception of matters of public interest which require debate. Government may find a particular issue morally sensitive or best avoided because of the political consequences. The Lords, not being politically accountable to an electorate, have no such qualms: unpopular issues (unpopular with government, that is) or controversial matters such as euthanasia, abortion, embryo experimentation, poverty and welfare, housing and employment may get a better airing in the Lords than the Commons.

The House of Lords also plays a role in the scrutiny of government, and in the scrutiny of European legislation and delegated legislation. The House of Lords is the second or Upper House. Unelected (as yet) and unaccountable, the Upper House is able to contribute to public debate and to subject legislation to an independent and often expert form of scrutiny. The 1968 Government White Paper House of Lords Reform referred to seven functions of the House of Lords.4

2.2. Its Appellate Role as the Supreme Court of Appeal

Historically, the House of Lords held several judicial functions. Most notably, until 2009 the House of Lords served as the court of last resort for most instances of UK law.Since 1 October 2009 this role is now held by the newly created Supreme Court of the United Kingdom. The Lords erstwhile judicial functions originated from the ancient role of the Curia Regis as a body that addressed the petitions of the Kings subjects.The functions were exercised not by the whole House, but by a committee of Law Lords. The bulk of the House of Lords judicial business was conducted by the twelve 'Lords of Appeal in Ordinary', who were specifically appointed for this purpose under the Appellate Jurisdiction Act 1876. The judicial functions could also be exercised by Lords of Appeal (other members of the House who happened to have held high judicial office). No Lord of Appeal in Ordinary or Lord of Appeal could sit judicially beyond the age of seventy-five. The judicial business of the Lords was supervised by the Senior Lord of Appeal in Ordinary and his deputy, the Second Senior Lord of Appeal in Ordinary. The jurisdiction of the House of Lords extended, in civil and criminal cases, to appeals from the courts of England and Wales, and Northern Ireland. From Scotland, appeals were possible only in civil cases; Scotlands High Court of Justiciary is the highest court in criminal matters there. The House of Lords was not the United Kingdoms only court of last resort; in some cases, the Privy Council also performed this function. The jurisdiction of the Privy Council in the United Kingdom, however, was relatively restricted; it encompassed appeals from ecclesiastical courts, disputes under the House of Commons Disqualification Act 1975, and a few other minor matters. Issues concerning devolution were transferred from the Privy Council to the Supreme Court in 2009. The House of Lords acts as the final court of appeal for the whole of the United Kingdom in civil cases and for England, Wales and Northern Ireland in criminal cases. If the House were abolished therefore a new supreme court would have to be established to take its place, unless of course the Court of Appeal were to become the final appeal court for England and Wales. However, as the judicial work of the House is separate from its other functions and only involves the
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judicial Committee drawn from the Lord High Chancellor, the Lords of Appeal in Ordinary and Lords who hold or have held high judicial office the separation of the judicial Committee from the rest of the House of Lords or its replacement by some new body would not perhaps cause too great a constitutional problem.The Constitutional Reform Act 2005 resulted in the creation of a separate Supreme Court of the United Kingdom, to which the judicial function of the House of Lords, and some of the judicial functions of the Judicial Committee of the Privy Council, have now been transferred. In addition, the office of Lord Chancellor was reformed by the 2005 Act, removing his power to act as both a government minister and a judge. This was motivated, in part, by concerns that the historical admixture of legislative, judicial and executive powers might not satisfy the requirements of the European Convention on Human Rights in connection with a judiciary's impartiality. It was also a response to growing acceptance of the view promoted by modern constitutional theorists that the old approach gave rise to very real separation of powers concerns. The new Supreme Court is located at Middlesex Guildhall in London.

2.3. The Provision of a Forum for Free Debate and Matters of Public Interest
Secondly, the House provides a forum for free debate on matters of public interest, Wednesday in particular being traditionally set aside for special debate on a wide range of subjects. Apart from the fact that these debates are usually of a very high standard; a standard that would perhaps never be reached in the Commons, even if the time were available, this loss would not pose any great constitutional problem. Debates may be initiated either by the government, opposition, backbench or independent members. Once a month, from the beginning of the Session until the Spring Bank Holiday recess, there are two Short Debates, limited to two and a half hours each. The right to initiate such debates is confined to backbenchers and crossbenchers and the subjects for debate are chosen by ballot.

CONCLUSION

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The House of Lords, as it exists today, is thus the product of a long evolutionary process. The House of Lords has a number of functions within Parliament considering and amending legislation, questioning the Government through debates and questions to Ministers, debating matters of public interest and carrying out specialist investigations through select committees of the House. We can easily say that, the House of Lords has four objectives in its legislative scrutiny work . It tries to increase the transparency of the reasoning supporting the proposed legislation. It can stimulate the Department to give further consideration to matters which give rise to concern. Involving civil society in its work strengthens the element of participatory (or at least consultative) democracy in the legislative process. The legislative powers of the House of Lords will remain unaltered. These are all important jobs for a second chamber, and the increasing volume and complexity of Government work and Government legislation means that both the workload of the House of Lords is increasing and its contribution to the legislative process is greater. The Upper House must complement the strengths and weaknesses of the Commons. The elected Commons represents the political nation, and is therefore necessarily supreme; it must have the final say to preserve core accountability. The Upper House must enhance the work of the Lower House and provide a differing point of view. The role of the Lords differs from the Commons, whose job it is to represent the public and pass bills from the Government. The Lords do not have to represent their constituents views and are under no pressure from Party Leadership. The Lords is also a debating chamber and some extent the House of Lords can reward for deficient scrutiny of legislation by the House of Commons. Though the powers of the Lords are limited by 1911 and 1949 Acts but the fact is that the House of Lords exercise the functions of a second chamber very well. The second chamber is needed to assist in the legislative process, it works to revise legislation ensuring it is coherent and legislative scrutiny will continue to be an important purpose of a reformed second chamber.

BIBLIOGRAPHY

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Literature
1.Carmichael, Paul, Brice Dickson, and Guy Peters, The House of Lords: Its Parliamentary and Judicial Role,Oxford, Hart Publishing,1999. 2.Davies, Michael, Companion to the Standing Orders and guide to the Proceedings of the House of Lords, 19th ed., London, 2003,HMSO. 3.Government White Paper, The House of Lords Reform, February 2007, (page 44). 4.Journal,The UKs System of Government,House of Lords, Foreign & Commonwealth Office London, (page 8). 5.Longford,Frank Pakenham, 7th Earl of, A History of the House of Lords. New edition,Gloucestershire,Sutton Publishing,1999. 6.Meny Yves,Government and Politics in Western Europe,Britain,Oxford Universitity,1991,(pages 128,151,158). 7.Parliament ,Encyclopdia Britannica, 11th ed. London: Cambridge University Press,1911. 8.Raphael, D. D., Donald Limon, and W. R. McKay, Erskine May, Parliamentary Practice, 23rd ed., London,Butterworths Tolley,2004.

Internet Resources
9.History of Parliament,www.histparl.ac.uk 10.The British Broadcasting Corporation, 2005, AZ of Parliament ,www.bbc.co.uk 11.www.politics.guardian.co.uk/lords 12.www.lords-reform.org.uk 13.www.official-documents.gov.uk 14.www.britannica.com 15.www.lawiki.org 16.www.lawyersnjurists.com 17.www.justice.org.uk

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